Holder Nomination Hearing, Part Two

picture-72.thumbnail.pngTo follow along, see CSPAN3 or the Committee Webcast (though the latter seems to be having the RealPlayer problem it was having earlier). 

Sorry. Started a little late. I think Lindsey Graham is beating up on Holder because he once worked for Blago, but that’s just a guess. [actually, not sure I got that right]

Graham: Is it fair to say that we’re at war?

Holder: No question that we are at war.

Still asking questions about whether our "war"–whether someone in the Philippines financing terrorism was part of the battlefield. 

Graham: What about someone who may not be subject to an Article III trial. Have you thought about that group?

Holder: I’ve struggled with that.

Leahy: Graham has discussed these issues with me, I’ve relied on his experience from JAG, we’ve also had some military people risking their own careers saying what should be done. They have been most instructive to members of this committee on how the UCMJ works. I would suggest that you may want to spend some time in informal discussions with people like Graham, we’ll at least let you know what our views are.

Holder: That’s a good idea. Didn’t want to talk about the substance of my conversation with Graham thinking he had thought about our military judgment a lot. 

Leahy (who keeps putting in letters of support at key times) is now putting in letters of support from Generals and whatnot. 

Cardin: I want to talk about Civil Rights Division. Resources reduced. Schloz. I want to give you an opportunity to tell me your own personal commitment, and how you will direct that division head what you expect to see during the Obama division.

Holder: Civil Rights is conscience of DOJ. 

Cardin: Bush Administration took zero cases supporting African Americans, but they were there to defend the draconian Georgia law that has been called the new poll tax. I’d like to find a way to prevent campaign tactics to be used to suppress turnout. 

Cardin: One other area shows a racial disparity in our country. Crack cocaine. African Americans now serve as much time for drug offenses as whites do for violent crimes.  We know we have disparities in our laws. It’s very clear that’s true wrt crack cocaine. I’d like a tough but fair system.

Holder: Our criminal justice system has to be fair, it has to be viewed as fair. I saw that in USA DC. I heard jurors talk about inadequacies in criminal justice system. 

Cardin: Let me return to issue of torture. I want to call your attention to rendition, where US has custody and turn them over to other countries where we know they will use torture. Convention Against Torture prohibits rendition to countries where they’ll be subject to torture. In your points about torture being illegal, it would be wrong to turn over custody to a country where we have reason to believe they will use torture.

Holder: It should not be the policy or practice of USA to turn over people to countries where they’ll be tortured. I’ve engaged in renditions, but that was to bring people here to trial. If we believe sending someone to Canada, they’ll be tried, but it’s different if we send someone to a country where they’ll be tortured. 

Cornyn: [You’re aware that our govt is spreading more propaganda about people returning to the battlefield, right?]

Holder: we need to review the cases about whether they are dangerous or whether they remain dangerous. 

Cornyn: Puerto Rican terrorists. Had not applied for clemency.

Holder; I thought the President’s determination was reasonable given that nature of offenses–they did not harm anyone. We deal with world now that is different than it was then, we deal with a post-9/11 world.

Cornyn: How about a post WTC bombing, bombing of the Cole? Would those be sufficient to raise concerns about granting clemency?

Holder: I said we didn’t understand we were at war soon enough. 

[Why isn’t anyone asking Cornyn about Bush’s decision to let Cuban terrorists go free??]

Cornyn: Did you recommend clemency to the FLN terrorist to Clinton? 

Holder: yes.

Cornyn: Post-9/11 would you decline to recommend clemency to Clinton?

Cornyn: Ticking time bomb scenario. You find out terrorists with access to CBN weapons, you’ve got a detainee who has information that if disclosed would save thousands in the US. Under my hypothetical using waterboarding would save thousands of lives. 

Holder: We should not assume that waterboarding is the only way to get information from someone. Waterboarding is not the best way to get that information.  I’m not at all certain that waterboarding that person would give us that information, and we have other techniques that would produce the results we want.

Cornyn: Torture is illegal in our laws. I’ve heard people say sleep deprivation is illegal. Under my hypothetical, if that were the only thing standing between you and the deaths of 10s of thousands.

Holder: Your hypothetical assumes a premise that I’m not willing to agree with. I don’t think it’s the only way to get that information.

Cornyn: Assume it was.

Holder: There are timely ways to get that information from people. I can’t agree with that without accepting your premise. I don’t think I can do that. 

Cornyn: You understand that some of those techniques are used in our own SERE, right?

Holder: That’s the training we give them to prepare them in case they are captured by people who are far less humane than we are. 

[Good job on that series from Holder.]

Leahy: Durbin, your new colleague has been sworn in. 

Durbin: Sorry for stepping out. It was to add another Democratic vote. I was present for your opening statement. I paid special attention to your treatment of torture. I felt from the outset that it struck at the fundamentals of who we are as Americans. [Quotes Schlesinger Jr.] It made me vote against AGAG and Mukasey. In the case of Gonzales, had been involved. I listened to your opening statement. In three words, the world changed. You stated without hesitation, that waterboarding is torture. I think it’s important for our country. I understand Cornyn’s questions. They’re questions that anyone who watches Jack Bauer would ask.  [nice dig, Durbin!!] The JAG are top military lawyers. I’ve asked them about techniques other than waterboarding. (Dogs, stress positions, forced nudity, etc.) They’ve said each violates the law. Do you agree with JAGs that it would be illegal to.

Holder: I’m not as conversant with those. I would not go as far. I don’t know enough about them. On the other hand, Common Article III requires humane fashion. I’d agree that those techniques are in fact correct that those techniques violate Common Article III. 

[Durbin asked about the immigration judges as well]

Durbin: Schloz hired 63 lawyers. What to do about them?

Holder: We should not paint with too broad a brush. The focus ought to be on mechanism that was used to get them into the department. 

Coburn: I’m sure we’re going to be here a while. I’ve handed you a list of inefficiencies in the DOJ. Will you commit to make sure that the intent of the Emmit Till unsolved Civil Rights crimes are fulfilled. I’m looking for a commitment that that will be a priority whether or not we do a good job of funding it. 

Holder: The fact that that initiative exists that this Congress thought it important enough to devote its attention to it is a sign of this govt at its best. Those are examples of crimes committed a long time ago that deserve to be pursued. 

Coburn: Alvin Sykes, tried to make a more efficient bill, it still isn’t funded, it needs to happen. 

Coburn: FALN. Being from OK and the tremendous tragedy there. Why did not the weight of the prosecutors bear more on your decision in thinking that that was reasonable pardon?

Holder: I did factor that in, we had 2 USAs weighed in against it, law enforcement, victims families, balanced that against those who were advocating for it, it seemed to me that on balance in a pre-9/11 world, the sentences they had that that was appropriate. Those were the factors I considered. 

Coburn: You admitted to a couple of mistakes of judgment–that’s not one of them.

Holder: We can have a difference of opinion there. But I don’t think it was mistake like Rich.

Coburn Terry Nichols, still worriesome.

[This will come up on the Lindh clemency request.]

Coburn: Heller. I believe SCOTUS got it right.  Tell me where you sit today and with that thought what you would do with that.

Holder: Post-Heller the options we have in terms of regulating firearms has been narrowed. It has not been eliminated, but reasonable restrictions are still possible. The Heller decision has to be factored in now. I don’t think we should turn away from discussions about who has guns and how they should be used. I think that we’re in a different world. 

Coburn: Do you agree that outside of sporting use there’s a right to own a gun?

Holder: [a little surprised by the question] Post-Heller definitely. I agree with Obama closing gun show loophole, banning sale of cop-killer bullets. Those are the things we need to focus on. 

Coburn: As AG will you make a commitment to defending Heller?

Holder: Sure.

Coburn: Would you also do so if SCOTUS granted Cert for a case revisiting Heller.

Holder: I’m a lawyer who follows stare decisis. Ultimate arbiter has said what 2nd Amendment says. Heller is a significant opinion. 

Leahy: I want to compliment the Senator from OK for his rendition of "Rocket Man."

Whitehouse: I’d like to cycle back to the beginning bc of my affection for the man to say how happy I am that Warner chose to come back to support your candidacy. I’m impressed with your kids. 

Holder: Well, you should take into account that they would otherwise be at school right now. 

Leahy: I mentioned to your mother that, grandparents are supposed to spoil grandchildren.

Whitehouse: Present at occasionally extraordinary moments. Senator Kennedy, his return for Medicare vote. Year before it was Comey’s testimony. What struck me was the personal nature of his discussion.  I know you have been there before, when you cleared a special prosecutor. You approved investigation of President himself. Can you tell us what you were feeling?

Holder: You have to treat the facts that come forward, irrespective of the effect it’ll have on the administration you serve. Those were not necessarily difficult decisions, it was what I expected of myself. They were ones that, after made, you reflect on. You have feelings about the impact of those decisions. It doesn’t give you any great sense of joy. It is what I will do, if I am fortunate enough to become AG. 

Whitehouse: Let me rattle off a few quick questions. Bush knocked down firewall between DOJ and White House. I have many disagreements with Mukasey, but he has done that. 

Holder: We have already started doing that so that communication between DOJ and WH is consistent with what Mukasey has put in place.

Whitehouse: Corruption pervasive and systematic. If everyone listed something that bothered them, what process do you think is appropriate to do a damage assessment, see what needs to be fixed, so you will know as commander of department, those things will be set right?

Holder: Has already begun. Filip and Mukasey have been honest about areas that need special attention. They were not given luxury of time. We’re going to have time. It is incumbent upon those who will run DOJ to do that damage assessment. To come up with mechanisms to repair that. A lot of that is inspirational. Personal connection. A lot of time walking the halls. Talking to people at the USA offices and making them feel a sense of mission that the DOJ is back to the way it was under both Republican and Democratic presidents. 

Whitehouse: Prosecutions of false statements. I have referred the EPA Administrator. In addition to asking you to review the USA DC recommendation, I’d ask you to consider working with us on prosecution guidelines, what is appropriate obligations of those who come before us, I think people forget that they’re here under oath. I’ve heard stuff that is everything from slipshod, to cold blooded lies.

Holder: They need tools so they will acquit themselves. Testifying does not come naturally. 

[Leahy invites Holder’s kids to run up and down the halls screaming, though warns that it might make the evening news.]

Brownback: Entering a Burton letter into the record. (Holder has noted that Burton’s report was not entirely accurate.)

Holder: As I indicated in my opening statement. I made mistakes. One thing I want to make clear, I was not aware of the contributions or the ties between Rich’s wife and other people in the Democratic party. One of the mistakes I made is that I did not acquaint myself with all the facts about Mr. Rich. That is one of the things I have said consistently. I’m not minimizing mistakes, but I do think that will be placed in appropriate context.

Hatch: Mr. Holder. You’ve acquitted yourself well. I support you and believe you should be supported. FISA Court of review released its earlier decision that PAA is constitutional. I know everyone will study the decision. "We hold that a foreign intelligence exception exists when conducted against … foreign powers or agents of foreign powers reasonably believed to be located outside the US."

[Hatch is entering Lichtblau’s inaccurate article into the record.]

Hatch: I hope mistakes of past will influence you to be a great AG, which is what I’m expecting. 

Brownback: Leavenworth doesn’t want the Gitmo detainees. The primary mission of Leavenworth is to train future leaders. We have heard from students from Egypt, Saudi Arabia, and Pakistan that they will leave if the Gitmo detainees come. The relationships are built there, key relationships in the ongoing war on terrorism. If you hurt that by moving detainees there, this is a big hit. I heard your clear statement earlier that you’re closing Gitmo. I would hope you would conduct an open consideration. 

Holder. There is a review now underway to figure out what might happen to the number of people who have to move. You’ve raised some important points. The inability to have people from Islamic countries leave is something that over the long term could harm our efforts. I had not heard that before. 

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  1. Mary says:

    Driveby – but how about telling Graham to go read Milligan and it will explain to him that in areas were courts are open and operating, that’s not “the battlefield”

  2. Mary says:

    Graham has agendas. One of the big ones is to make sure that those people wrongfully bought in Pakistan and elsewhere, then shipped to GITMO in violation of the Geneva Conventions, then treated with depravity and used for human experimentation and torture – he wants to make sure they don’t have a claim. He gets rabid over not letting “terrorists” collect damages.

    But what he really wants is to keep what was done behind closed doors, behind those doors. He wants to disenfranchise the el-Masris (mission accomplished there so far) but the Rashul case and its referral back has to have him fuming. I wonder how much Graham was included in torture briefings for him to hold this so near and dear to his heart – that bipolor chefs, sold into human experimentation at GITMO should never be able to make a claim for their treatment?

    In any event, it’s a road he went down with Alito as well.

  3. Mary says:

    Conventions against torture – good question from Cardin. It would be nice to also tie in what authority Holder thinks he has vis a vis the head of Homeland Security (in an Arar situation) and the Sec of State (giving out assurances of non-torture)

  4. Mary says:

    So if we have someone who is “dangerous” but can’t be convicted of anything, we just hang on to them.

    In a Grahamesque system, where they have no recourse, ever.

    Yipee.

    • dosido says:

      I thoroughly understand your point. Our entire system of “justice” is based on the concept that it is better to let a guilty man go free than imprison an ######## one esp. without due process.

      Unfortunately, many many people do not get this.

  5. skdadl says:

    Hey — that figure that Cornyn just cited — 61 from GTMO have returned to battlefield — where does he get that, and shouldn’t Holder challenge it? Ok: shouldn’t we challenge it? I’m sure that is a myth.

    • freepatriot says:

      43 of those who “returned to the battlefield” have done so by MAKING NEGATIVE STATEMENTS ABOUT THEIR DETENTION

      so talking about being tortured is “RETURNING TO THE BATTLEFIELD”, apparently

      only 5 of those 60 some odd people have actual NAMES and stuff

      • skdadl says:

        Yeah … I suspected as much. I hear a lot of xenophobia in the statements that guys like Mukasey have made about how dangerous it is to let the detainees loose — in our country?!? — even if they’re innocent. After all, if they didn’t hate us before, they’re bound to hate us now, eh?

        Remember the old definition of chutzpah? Kid kills both his parents and then throws himself on the mercy of the court as an orphan? Mukasey reminds me of that kid so much. And I think he doesn’t like furriners.

  6. Mary says:

    Holder thinks the problem isn’t that we have tried to handle a criminal law matter by declaring war on the world and a concept, but rather that the problem is that we didn’t realize “the War” earlier.

    booyah.

    I’m guessing those Clinton renditions to torture in Egypt won’t be getting any close looks either.

  7. dosido says:

    I’ve relied on his experience from JAG

    Ugh. Huckleberry’s active duty experience is stateside and included readying way braver kids to deploy to that safe and free marketplace known as Iraq. I despise this person.

  8. skdadl says:

    Teh bleeding ticking time bomb scenario … Cornyn is close to scoffing at the severity of some techniques that we know can kill people. He sounds like Rumsfeld’s scribbled note. Holder is finally resisting some of his absurd hypotheticals.

  9. Mary says:

    Here’s where they are getting the number:

    http://voanews.com/english/2009-01-14-voa12.cfm

    The United States Department of Defense says the number of former Guantanamo Bay detainees returning to terrorist activities is on the rise.

    Pentagon Spokesman Geoff Morrell told reporters on Tuesday that 61 former detainees from the U.S. military facility at Guantanamo Bay, Cuba have returned to the fight against the United States and its allies.

    Morrell said that a Defense Department report compiled in December found a substantial increase in the number of detainees returning to terrorism.

    It’s a joke. They can’t even tell you what happened to most of the released, bc they never tracked them. ANd the “return” element is the biggest part of the joke.

    I’m sure some are fighting against America. I’m not sure that all of them are necessarily people who were fighting against America before they were subjected to war crimes.

    The ticking time bomb crap – and he lets them get away with the pretense that long term sleep deprivation isn’t torture. !$(#&$&*#!

    How about asking the distinguished Senator if he ever loses sleep over the use of al-Libi’s tortured info to create thousands and thousands of dead and limbless American soldiers?

    • Hugh says:

      The ticking timebomb scenario is raised but Holder says he does not accept the premise, i.e. that torture is the one and only way to elicit information and that information is, in fact, truthful.

      Holder repeats for Durbin that waterboarding is torture but says he doesn’t know enough about mock executions (and I believe stress positions) to say if they are torture. That seems incredibly weak to me. If he has had all of these discussions with generals and such, I am surprised that none of these other matters came up. I am equally surprised that his own understanding of them would not be sufficient to make a determination. Stress positions are another signature practice of torture. And mock executions I would think would be a no brainer.

  10. dosido says:

    If these buttwipes are so concerned with terrorists returning to battlefield, they damn well ought to follow the proper legal procedures to keep them behind bars. They are the very ones who allow them to slip free with their Keystone Kop Jagging off. What a bunch of b*neheads.

  11. skdadl says:

    Jack Bauer? How did he get in here? Durbin! Get serious!

    Argh. Did you know that Kiefer Sutherland is the grandson of Tommy Douglas, a sainted figure in Canada, father of universal health care, great social democrat, one of those best PMs we never had. (It’s kind of hard for NDPers to form a government, but they have had creative influence in some good governments.) Poor Tommy. If he could see “24,” his grave would be rolling and roiling.

    • dakine01 says:

      As a current Texas resident, we really did try to take Box Turtle Cornyn out this past election. Unfortunately, there are still not enough semi-sane people in the state to allow for that.

      But there’s always ‘14. Assuming the Republic survives that long.

  12. Mary says:

    Vis a vis the SERE crap

    “Men and women voluntarily have sex – therefore, why is it illegal for a gang to break into my daughters room and subject her to oral, anal and vaginal intercourse against her will for days? I mean, it’s all sex, right?

  13. Hugh says:

    If you can vote at 18 why should you have to wait to own a gun in some places until you are 21? (The answer Holder should have given: Probably for the same reason, that you can vote at 18 but can’t drink until your 21, idiot.)

  14. Petrocelli says:

    WTF is Brownback talking about … there are people waiting for Down Syndrome Babies ?

    Is that so they go to Heaven ?

  15. Mary says:

    Interesting that the Rich case has been screaming out at Brownback – not so much the children he’s helped kill in Iraq, but the Rich case, sure.

    Maybe some day he’ll bounce Maher Arar’s daughter on his knee and explain screams to her.

  16. 4jkb4ia says:

    With all due respect to having been smacked down by EW earlier, blowing up a US Navy ship is an act of war, although you may be able to eliminate the threat by non-warlike acts and cooperation of other governments’ legal systems. The Kenyan embassy bombing was treated as an act of war that required a military response.

  17. Mary says:

    Mr. Brownback, just as I know that members of Congress, as victims of liars who have made false statements before them, should be contacted and have their input assessed before decisions are made to forego prosecution of false statements to Congress; I equally believe that the victims of crimes and prosecutors should have a strong voice on clemency decisions. I think that what I have learned from the Rich case will make me even more cognizant of the risks inherent in foregoing prosecution and punishment of those who have committed crimes.

    That’s what I didn’t hear.

  18. Hugh says:

    Part of Glenn Greenwald’s post today covered the Lichtblau article. It is apparently full of errors and misses that it is really only about whether the PAA was valid, not Bush’s NSA program.

  19. Mary says:

    39 – there are all kinds of terrorist crims that are not acts of war, in large part because they are not committed by state actors or by quasi state actors (like paramilitaries supporting a faction attempting to seize control of a nation’s government).

    The Oklahoma City bombing was not an act of war, it was a crime. Druglords routinely gather as many resources and engage in as much terrorism as, for example, a group like what the Taliban was.

    I absolutely believe that you have situations involving large criminal groups where you need to have and use military force and we have done that in the past. But when you decide that the military force is not being used merely as an adjunct to legal efforts, but instead as an unchecked implement visiting “justice” you’ve failed before you’ve begun. Without a goal (even if military skirmishes prevent it) of attempting to seize and bring to justice criminals and reveal all the evidence and information about their crimes – you lose. Once you view the situation as a “war” instead of a military support of an effort to deal with criminals, you end up ok’ing civian casualties and deaths and “collateral damage” and you run up the “body count” aspects as well. As soon as your response to criminals killing people is to have your military also go kill civilians, but for a “good purpose” you’ve lost. More than lost, you’ve joined the other side.

      • bluejeansntshirt says:

        cnn stating looks like all aboard escaped safely.
        loud bang after takeoff then smoke in fuselage.
        flt 1549 LaGuardia to Charlotte

        • dosido says:

          yes, thank goodness. I’m looking at the eyewitness photo of people standing on the wing of the plane. The temp of the water is in the thirties. yikes. all the ferries are helping out too.

          • dosido says:

            sorry for continued o/t. eyewitnesses in nearby buildings singing praises for pilot making smooth controlled landing. amazing. people got out so quickly.

  20. Mary says:

    U don’t represent the people when you support legislation that allows warrantless surveillance on masses of them.

    I’ve been an agnostic, now I’ve moved on to dislike.

  21. bigbrother says:

    Mukhassey according to Holder have straightened out the justice department and I respect him for that. Aipac is everywhere. Choose to be in US government give up other citizenships. Cannot serve two master. We are not the United States of Isreal.

    Holder…my number one priority is antiterrorism. Wrong position… should be enforcing the rule of law as AG. Played the race card.

    • hackworth1 says:

      Holder…my number one priority is antiterrorism. Wrong position… should be enforcing the rule of law as AG. Played the race card.

      No matter the actual job title, Everybody, Congress members, the President, the VP, eveybody wants to be terrist stopper.

      What a sad state of affairs. Are we really as bone jarringly stupid as they think we are?

  22. NorskeFlamethrower says:

    Who’s gettin the hearings…I’m gettin Tim Fuckin Kaine and fuckin Virginia legislature…WTF?

  23. emptywheel says:

    Note, I’m going to go buy dinner. If they come back, take good comments and I’ll start a new thread when I come back. Though I’m pretty sure it’ll be SPecter over and over and over.

  24. Neil says:

    We’re on the second round (5 minutes). Specter up.

    Specter challenging Holder on whether his testimony about Mark Rich, that Holder had only a passing familiarity with the pardon process. Cited a number of phone calls from a log. Holder explains.

    Specter cites a 1AM phone call from Roger Adams, Esq as counter evidence.

    Did Pres Clinton talk to you about the Rich pardon?
    “I never spoke to Pres Clinton about the Rich Pardon.”

    Specter pressing Holder on why he asked the pardon attorney Roger Adams to write memos (from Holder) to recommen pardons that Holder knew Adams disapproved of.

    He worked for me. I was asking him to do his job. The memo’s were from me.

  25. skdadl says:

    They were back briefly — Specter, Kohl, and then Specter again.

    Arlen is making great doom out of the Rich pardon. But now we have another recess for voting.

  26. Neil says:

    Sen. Norm Coleman up.

    Missed q1.

    Coleman, chastising Holder on sharp cutback of anti-trust enforcement during Clinton years and speechifying. His question…What’s you view with respect to strong anti-trust enforcement? (watch the re-run.)

    Last q on re-sale price placement. Manufacturer sets minimum retail price. Cites Supreme court decision that allows some of this. Will you permit this or oppose it. Holder doesn’t like the practice and doesn’t think the Supreme Courts decision is necessarily. Holder will work with Colemen on the issue.

    Specter back up.

    Specter wants a copy of a document re: Mark Rich pardon. Document is in Holder’s possession on agreement from justice must return it to justice. Cant allow anyone else to see it. Didn’t get disposition of request other than Holder can’t provide it.

    Short Recess to vote on release of $350 bilion TARP funds. Break for vote 4:40 PM.

  27. NorskeFlamethrower says:

    Firepup Freedom Fighters:

    Every single fuckin fascist Republican needs to be defeated at the polls in 2010 and that starts with Specter…there is no better example of why our country and Pennsylvania in particular is in the tub of shit it is….

    • DWBartoo says:

      Living here, in Penn’s Woods, I could not agree more with you, Norske.
      Specter has got to go …

      BTW, keep that ‘dragon’ (which hopefully doesn’t eat breakfast), at bay.

      DW

    • Twain says:

      I won’t be awake when you hit 100 hours. I am all broken up about it – was planning to start a slow Snoopy Dance (with veils, of course) and work myself into a frenzy at the appointed hour. Oh, well, better late than never.

  28. hackworth1 says:

    If I could defend Chiquita banana all day, I would do that, but my Country called me up to protect it from other terrists. – Eric The Red